General Electric Wiring Devices, Inc.

GENERAL ELECTRIC WIRING DEVICES, INC. 837 General Electric Wiring Devices, Inc. and Interna- TRIAL EXAMINER'S DECISION tional Association of Machinists and Aerospace Workers, AFL-CIO. Case 24-CA-2774 August 10, 1970 DECISION AND ORDER By MEMBERS FANNING, MCCULLOCH, AND BROWN On March 24, 1970, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed timely exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made at the hearing by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief,' and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, General Electric Wir- ing Devices, Inc., Juana Diaz, Puerto Rico, its officers , agents , successors , and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' In its brief the Respondent excepts to the Trial Examiner's finding that it discriminated against Martinez by failing to pay him the customary 10- cent night-shift differential Although the Trial Examiner's finding in this respect is supported by payroll records introduced into the record by the Respondent during the course of the hearing , it nevertheless attached to its brief a payroll statement reflecting that Martinez was in fact paid the dif- ferential The Respondent also excepts to that portion of the Trial Ex- aminer's Recommended Order which requires the Respondent to offer to restore Martinez to his former position, and it contends that subsequent to the close of the hearing Martinez was terminated from his employment for cause We find it unnecessary to modify the Trial Examiner's findings and Recommended Order, as these issues can best be resolved at the com- pliance stage of this proceeding STATEMENT OF THE CASE OWSLEY VOSE, Trial Examiner: This case, heard at Ponce, Puerto Rico, on January 15 and 16, 1970,' pursuant to a charge filed the preceding Oc- tober 6 and a complaint issued November 28, presents the question whether the Respondent restricted Pedro Martinez' freedom of movement about the plant and transferred him from the morn- ing shift to the late night shift because of his union activities; thereby engaging in discrimination and interference, restraint, and coercion in violation of Section 8(a)(3) and (1) of the Act. Upon the entire record and my observation of the witnesses, and upon due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is engaged in the manufacture of electric wiring devices at its plant at Juana Diaz, Puerto Rico. During the year preceding the is- suance of the complaint the Respondent had shipped to its Juana Diaz plant from off-island sources more than $50,000 worth of materials and supplies, and during this same period shipped to customers off the island in excess of $50,000 worth of finished products. Upon these facts, I find, as the Respondent admits, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, hereinafter called the Union , is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Respondent's Restricting of Pedro Martinez' Freedom of Movement About the Plant and its Discriminatory Transfer of Martinez to the Late Night Shift in Violation of Section 8(a)(3) and (1) of the Act 1. Background; the nature of the Respondent's operation As indicated above, the Respondent manufac- tures various electrical wiring devices, such as ' Except where otherwise indicated all other dates hei-em refer to the year 1969 184 NLRB No.97 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relays, switches, and receptacles. These devices are assembled from metal and plastic parts on assembly lines. The plastic parts are made in the molding room on approximately 30 or more presses and machines which are attended by five or less opera- tors on each shift . Three shifts work around the clock in the molding room , the first shift commenc- ing at 6 a .m. and continuing until 2 p .m., the second beginning at 2 p .m. and continuing until 10 p.m., and the third starting at 10 p .m. and running until 6 a.m. The Respondent employs two quality control auditors to oversee the functioning of the presses and machines in the molding room, one of whom is Pedro Martinez, whose transfer from the day shift to the night shift on October 1 presents the principal question in this proceeding . Prior to October 1 , Martinez worked from 7:30 a.m. to 4:30 p.m. and Jorge Maldonado , the second-shift quality control auditor , worked from 4:30 p.m. until 1:30 a.m. Thus, the shifts of the quality control auditors covered all but 1-1 /2 hours of the first shift in the molding room , all of the second shift , and 3-1/2 hours of the third shift. The quality control auditors check the whole molding process , observing whether the proper quality and mixture of molding powders go into the molds, whether the molds are operating at the proper temperature and at the proper length of cur- ing cycle, and whether the molds and machines are functioning properly from a mechanical standpoint. If the quality control auditors observe some mal- functioning in the process which results in defective parts being produced , their responsibility is to stop the presses and machines . Quality control auditors are not expected to repair presses and machines which are not functioning properly . The Respon- dent employs mechanics for this purpose , but at the time of the events here involved had no mechanics on the third shift in the molding room . The shift leader on the third shift performed this function. Quality control auditors keep detailed daily records of the manner in which the individual presses and machines are working and specify the kind of faulty functioning observed. The quality control auditors use instruments to check the dimensions of the plastic parts which appear to be improperly formed or as to which questions are raised in the assembly process. Another duty of the quality control audi- tors is from time to time to assist supervisors and others on the assembly lines in solving production problems arising out of attempts to use slightly mal- formed plastic parts. The quality control auditors would visit the assembly lines on these occasions. A great many more employees work on the as- sembly lines than in the molding room . Thus, there were over 200 assembly line workers on the first shift, 7:30 a .m. to 4:30 p.m ., and between 14 and 16 on the assembly line on the second shift, 4:30 p.m. to 1 : 30 a.m ., as compared with less than 15 employees on all three shifts in the molding room. 2. The Union 's organizing campaign and Martinez' role therein Sometime in August 1969, the Union com- menced of organizing drive among the Respon- dent's employees . There had been previous drives in both 1967 and 1968 . Martinez was one of the leading advocates i of the Union among the em- ployees in the 1969 drive. He was one of the con- tacts among the employees of Juan Maldonado, the Union's paid representative in charge of the or- ganizing campaign. Martinez assisted Maldonado in distributing leaflets and bargaining authorization cards among the employees . The signed cards ob- tained by other union supporters were turned over to Martinez for delivery to Organizer Maldonado. Martinez openly distributed union leaflets outside the plant in the mornings before the assembly line employees went to work at 7:30, during his lunch hour , and after work. Martinez also spoke about the Union to employees in front of the plant on various occasions over a loudspeaker. On at least one occasion Martinez was observed doing this by Pedro Pillot , manager of plant operations, and Genova Serrano , the supervisor over'the day shift in the molding department, in which Martinez worked. 3. The Respondent's initial response to Martinez' organizing activities Within a few weeks of the commencement of the organizing campaign , Martinez was taken by Ismael Alvarez, the Respondent 's quality control manager, to the office of Jacobo Calder , the Respondent's manager of employee and community relations. There Alvarez and Calder had a conversation with Martinez. As related by Martinez, ... Mr. Alvarez told me ... that he was aware that my salary had not been revised in the last three years and that he realized that I was upset on account of that ... that they already had written a letter to the company president to make a revision in my salary and give me an increase and besides, I could start working overtime.... ... first they told me that in exchange for that, the increase in salary and the overtime, they expected something from me.... I replied that what they could expect from me they already had, which was my good work and my good disposition towards my work . Then Mr. Al- varez told me that besides that they expected something else; that I had to drop the union GENERAL ELECTRIC WIRING DEVICES, INC. movement, that I was doing inside the Com- pany, because of the union movement, if it continued they could not give me the increase in salary, because after there was a union movement inside the company, the law prohibited that the employees should get in- creases in salary. I told him I was a man of principle and I could not defraud in any way the employees who had signed cards for me and who had made me their leader and that they had put all their confidence in me to bring the union into the shop. Calder and Alvarez both testified that they did not have any conversation with Martinez in Sep- tember about wages or overtime. Their last conver- sation with Martinez about wages, according to Calder and Alvarez, was in May when there was a discussion of a 2-cent raise to bring him to the top of his grade, grade 4. Martinez also testified con- cerning an offer from Alvarez of a 2-cent raise in May, which, he testified, he refused. The conflicts in the testimony cannot be resolved without taking all of the facts of the case into con- sideration. I discuss in part 8, below, my conclu- sions concerning the resolution of the conflicting testimony in this case. On another occasion in September, after the commencement of the organizing drive, as Mar- tinez was returning from Alvarez' office with some plans for some plastic parts, Thelma Torres, an as- sembly line worker, called him over to her. Mar- tinez testified that while Torres was asking him about a personal matter , Employee Relations Manager Calder approached. Upon seeing Calder, Martinez excused himself and started walking towards the molding room . Martinez had to pass through the laboratory where Visitacion Reyes worked. Calder caught up with Martinez as he was greeting Reyes. According to Martinez, Calder said to him, in the presence of Reyes, as follows: Pompi [Martinez' nickname], I am fed up with this matter of the union .... You are all the time by the assembly line making propaganda with the girls and many people have told me. . . . From now on, you are restricted to your own area of work unless it is with my permission or my authorization or your im- mediate boss who is Mr. Alvarez. You cannot leave the molding room. Martinez' testimony continues. I told him, "Mr. Calder, I was not talking about the union, and you were close enough to us and you must have realized that it was her who called me. Besides, you can go to her and you can ask her what we were talking about." 839 The next day he came. I think it was the next day, and he offered-he apologized and he told me, "Pompi, I have just found out you were not talking about the union. I hope you will ex- cuse me." That was all. Reyes testified as follows cident: concerning this in- Well, during the month of September, I only remember one day on which Mr. Martinez was coming from the line. He came to my work sta- tion and while he was trying to talk to me, Mr. Calder arrived and what I recall Mr. Calder told him and told him he was fed up with him on account of the union; that he did not want to see him around the line; that his place of work was at molding, to go to molding and there they continued talking. What they spoke, I do not know. Reyes was an observer for the Respondent in the 1967 election There is no evidence concerning Reyes' disposition towards the Union in the 1969 campaign. Geraldino Santiago, the Respondent's top super- visor of the assembly line employees, also testified regarding this incident, as follows: I was coming out of the surface wiring to the relay section. When I was coming, I could see Mr. Pedro J. Martinez talking to Mrs. Thelma Torres at one of the machines. At that same moment, Mr. Calder was going by. Mr. Calder was approaching that section, Mr. Martinez left. They continued and then he went to the machine where Thelma Torres was working and asked her if there was a problem or something . She told me she had called Mr. Martinez to ask something personal . I told her the personal matters should not be discussed during working hours. I admonished her. I told her that in working hours she could not be talking about personal matters. Calder's testimony is as follows: During the walk that I take daily through the plant , this particular afternoon I went by the relay section and I noticed that Mr. Martinez was talking in a kind of joking way, obviously wasting time, with Mrs. Thelma Torres. I looked at them and I continued on my rounds. On my return, approximately five or ten minutes later, I went by the same spot and Mr. Martinez was still there talking, making gestures, laughing. I looked at him. He im- mediately lowered his head and immediately he. left that spot. I followed him and at the en- trance of the molding room, I called him and I 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told him that I was tired watching him waste time at the plant ; that I was asking him to remain in his work station at the molding room. Then he asked me, "Are you restricting me to the molding room?" And I said, "No, sir, I am not restricting you to the molding room." And that was all that happened. Calder denied mentioning the Union during this conversation. This was the first time that Calder had ever repri- manded Martinez for such conduct , although ac- cording to Calder 's testimony, he had seen Mar- tinez on other occasions "talking to other persons on the line, and obviously in the same manner." On these prior occasions , Calder testified he had re- ported this conduct to Martinez' supervisor and his supervisor had spoken to Martinez about it. As manager of employee and community relations, Calder was not responsible for the supervision over assembly line and molding room employees . Calder explained his intervention on this occasion by say- ing that Alvarez, Martinez ' "boss," was not at the plant . Calder did not state whether Genova Ser- rano, the foreman of the molding room and Mar- tinez ' immediate supervisor , was at the plant that day. 4. The petition for certification , the election On September 3, the Union filed with the Board's Regional Director a petition for certification as the exclusive bargaining representative of the produc- tion and maintenance employees at the Respon- dent's plant . On September 22 the parties entered into a stipulation for certification on the basis of a consent election. Pursuant to the stipulation, an election was held on October 23, which the Union lost. 5. The Respondent 's transfer of Martinez to the third shift on October 1; related events Pursuant to arrangements previously made with Organizer Maldonado , Martinez assisted Mal- donado in passing out union leaflets in front of the plant from 7 to 7:20 a.m . on October 1. These leaflets , in a series of nine questions specifically directed to Quality Control Manager Alvarez, questioned the accuracy of comments made by Alvarez based on a newspaper article which attributed certain plant closings to union ac- tivities, belittled his qualifications for earning his $20,000 salary, and suggested , based on antiunion activities allegedly engaged in by Alvarez while working for other employers, that Alvarez was em- ployed by the Responde6t to "scare" employees away from the Union . The leaflets, which were signed by "Juan L. Maldonado , Representative, I.A M.," concluded with the following plea: So that Alvarez doesn 't deceive you the same way you were deceived during the last election, VOTE YES Between 8:30 and 9 that morning , according to Martinez, Alvarez went to Martinez' desk and threw one of the leaflets down on it, saying "You are the one behind this." Martinez replied , "If you read it , you must have noticed that it has been signed by Mr. Maldonado and not by me." Alvarez mumbled something which Martinez could not un- derstand and left. Alvarez testified that he never had any conversa- tion with Martinez about union leaflets which referred to him personally . Alvarez admitted, how- ever, being aware that on various occasions union leaflets did refer to him personally. At 2 p.m. that same day, Alvarez summoned Martinez to his office and without discussion handed Martinez the following memorandum: October 1, 1969 To-Pedro J. Martinez-Q. C. Auditor Mold- ing Due to the innumerable problems existing on the third shift of molding we have made the following decision based on your proven ability to resolve those problems.... Starting Thursday, October 2, you will report to work at 10 in the evening , you will have a recess from 2 to 3 in the morning , and will finish your shift at 7 in the morning . We hope that your performance on that shift will resolve many of the problems affecting us so much. s/ I Alvarez 1. Alvarez cc: J. Calder P. Pillot Martinez ' undenied testimony is that he protested that the shift change was a reprisal against him for having distributed the leaflet and asserted that it was contrary to company policy to make such a drastic change in shifts without advance notice. Martinez ' uncontradicted testimony continues that he disputed, in a respectful manner , the-assertion in the memorandum that there were problems on the third shift which he was needed to help solve, pointing out that in the past when the situation was worse because of the turnover among the ex- perienced men and the lengthy absence of the su- pervisor due to illness, the Company had not GENERAL ELECTRIC WIRING DEVICES , INC. 841 changed his shift. Yet now, Martinez went on to say, after the supervisor had returned and there were less problems, he was being transferred. Although the Respondent's "Personnel Practices Handbook for Employees" makes specific provision for a 10-percent bonus for third-shift work, Mar- tinez was not given the third-shift differential. In- stead Martinez' wages were increased as part of a general pay increase which was put into effect by the Respondent on October 1 for all employees. Martinez' rate of pay as a grade 4 quality control operator was increased from $1.82 to $1.95 per hour at this time, an increase of a little over 7 per- cent. Had the Respondent given Martinez the 10- percent third-shift bonus, to which he was ap- parently entitled under the policies stated in the Respondent's handbook, it appears that his wage rate would have been increased to about $2.15 per hour. The same day that Martinez was transferred to the late night shift Jorge Maldonado, the quality control operator on the second shift from 4:30 p.m. to 1:30 a.m., was transferred to a shift commencing at 1 p.m. and continuing until 10 p.m. Jorge Mal- donado was given no advance notice of this change. Nothing was said to either Martinez or Maldonado at the time of their transfers about the duration of the transfers. On January 7, after the issuance of the complaint in this proceeding and about a week before the hearing was scheduled to begin in this case, the Respondent had the two quality control auditors swap shifts, with the result that Martinez worked from 1 p.m. to 10 p.m. and Maldonado worked from 10 p.m. to 7 a.m. On one occasion while Martinez was still on the 10 p.m.-7 a.m. shift three employees from the production area sought to talk to Martinez during the 10-minute break period. In Martinez' presence, the guard who was nearby told them: "You cannot be here. You cannot be talking to Pompi." They told him. "We are in our break." And he said, "No, you cannot talk to Pompi." And he pushed them and he escorted them to the place where they worked. This is Martinez' undenied and credited testimony. On another occasion during the period Martinez was working the late night shift, he sought during the day shift to pick up a book which he had left on his desk in the plant. Alvarez saw Martinez when he came in and told Martinez, as follows: I prohibit you to be here in the company un- less it is during your working hours and your hours are from 10 at night to 7 in the morning. Alvarez did not deny or attempt to explain Mar- tinez' testimony, above quoted. 6. The Respondent 's explanation for Martinez' transfer The Respondent asserts that during 1969 it had difficulty in achieving satisfactory quality produc- tion in the molding room and that the problem reached alarming proportions in September. At that time, according to Quality Control Manager Al- varez, Plant Manager Pillot prodded him to do something to improve the quality of the molded parts and to reduce scrap. On September 16 Al- varez had Martinez make an analysis of the parts on the floor to ascertain their quality. Martinez' re- port, Respondent Exhibit 1, disclosed, according to Alvarez, that 20 to-25 percent of the parts were de- fective. After examining the report and conferring with Martinez2 and Plant Manager Pillot, he con- cluded that it was the third shift which was largely responsible for the poor quality production and that a reorganization of the shifts of the quality control auditors to put the Respondent's most experienced quality control auditor on duty during the third shift would be the most logical solution to the problem .3 7. The General Counsel 's contentions concerning the transfer The General Counsel points out that Martinez was the known leader of the union movement in the plant, that the Respondent first tried to dissuade him from continuing his union activities by dangling the prospect of a wage increase and overtime work before him, and, when this effort failed, restricted his freedom of movement about the plant, at the same time making explicit its objections to Mar- tinez' propagandizing among the girls. When, how- ever, Martinez persisted in openly engaging in union activities and distributed union leaflets per- sonally attacking Alvarez for antiunion actions while working for other employers, Alvarez reacted immediately, banishing him to the late night shift, where he would have hardly any contact during his shift with the great bulk of the employees who worked on the day shift. The General Counsel ar- t Martinez testified that he told Alvarez at this time "that it was most probably the third shift" which was responsible for the high percentage of scrap being produced ' The Respondent introduced into evidence in support of Alvarez' testimony in this regard a memorandum from Alvarez to Plant Manager Pillot dated September 30, in which he discussed the factors causing the quality problem on the third shift, including the absence of any supervisor or quality control operator, and the presence of operators with less seniori- ty and, therefore , less experience The memorandum concludes with an an- nouncement of the decision to rearrange the shifts, as stated above 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gues the assignment to the third shift of a quality control auditor, who was not expected to make mechanical repairs and whose only recourse when he observed presses or machines malfunctioning was to stop them , was not likely to increase the production of better quality parts. These circum- stances, among others , the General Counsel asserts, point to the conclusion that the real reason for Martinez' transfer to the late night shift was its desire to put the leader of the union movement out of circulation during the hours when the great majority of the employees worked , and that the al- leged quality problems of the third shift were mere- ly a pretext for doing so 8. Conclusions a. The credibility problem Choosing between the opposing positions as to the real reason for the Respondent 's transfer of Martinez to the late night shift requires the resolu- tion of very serious conflicts in the testimony. This is a difficult chore for a Trial Examiner at best, but it is made more difficult in this case because not only the General Counsel 's principal witness, Mar- tinez, but also the Respondent's two main wit- nesses, Alvarez and Calder , appeared willing to overstate matters when they thought it would be helpful to their cases. However , after carefully ob- serving the three witnesses on the stand , I conclude that Martinez was more frank and had a better recollection of events than did either Alvarez or Calder . The final conclusion as to which testimony was truthful cannot be made without weighing it in the light of all the known facts and the inherent probabilities of the various situations. The first item of sharply disputed testimony con- cerns the incident of Alvarez and Calder assertedly offering to seek to obtain for Martinez an increase in his pay rates and more overtime. In view of the entire sequence of events in this case I accept Mar- tinez' testimony concerning this incident . It con- tains sufficient details to be convincing, and it would be wholly inconsistent with Martinez' character as it revealed itself to me on the stand for Martinez to have made up this incident out of whole cloth . I cannot accept the testimony of the Respondent 's witnesses that this incident never happened . Accordingly , I credit the testimony of Martinez concerning this incident. The next incident about which there is a serious controversy is the one involving Calder's reprimand of Martinez after his visit to Thelma Torres' work station and his restricting of Martinez' freedom of movement about the plant . In his testimony about this incident Martinez appeared to have a good recollection of the details . I do not believe that Martinez would have admitted that Alvarez apologized to him on the next day unless this were true . And the testimony about the apology is not of a kind , in my opinion , which an employee is likely to make up . Calder's testimony to the effect that he observed Torres and Martinez talking for 5 to 10 minutes appears to me to be grossly exaggerated. The Respondent has too many supervisors in the as- sembly line area for such a disruption of production to go unnoticed for so long . Supervisor Santiago did in fact observe Torres and Martinez talking, and reprimanded Torres for it. Visitation Reyes, who overheard a portion of Calder's remarks at his work station, appeared to be a truthful witness and he corroborated Martinez' testimony about Calder saying that he was fed up with Martinez because of the Union . As found above , it was part of Calder's job to supervise the day-to-day conduct of the Respondent 's employees . As Calder's testimony reveals , he ordinarily left such disciplining up to the supervisors involved . Calder did not explain why he did not let Supervisor Serrano take care of this problem on this occasion . Calder's conduct, as at- tributed to him by Martinez , is consistent with the Respondent 's later treatment of Martinez in trans- ferring him to the late night shift . In both instances the effect of the Respondent 's action was to limit Martinez' opportunities during his shift ( i.e., during breaks and lunch periods) to contact assembly line workers. For all the foregoing reasons I conclude that Calder on this occasion did express his disap- proval of Martinez' union activities, as testified to by Martinez and Reyes, and did restrict Martinez' freedom of movement about the plant , as testified to by Martinez . Calder's contrary testimony is re- jected. Another portion of the testimony which is in total contradiction is Martinez' testimony that an hour or so after he passed out the union leaflets in front of the plant on October 1, Alvarez confronted Mar- tinez with one of the leaflets and accused him of being responsible for the Union's charges against Alvarez. Alvarez flatly denied that any such thing happened . It is understandable that Alvarez would have reacted in this manner and it is wholly con- sistent with Alvarez' action against Martinez that afternoon in transferring him to the late night shift for Alvarez to have accused Martinez in this fashion . Considering the conflicting testimony of Martinez and Alvarez about this incident in the light of all the circumstances of the case, Martinez' testimony appears much more plausible and I credit it. The final area of controverted testimony in this case relates to the Respondent 's claim that the problem of poor quality production on the third GENERAL ELECTRIC shift had reached such serious proportions by the end of September that remedial action had to be taken immediately. Respondent first called to the stand Pedro Pillot, who, as manager of all the operations at the plant, had the least first-hand knowledge of the details of the day-to-day opera- tions in the molding room. Pillot testified first con- cerning the longstanding problem of the poor quali- ty production in the molding room, and the factors causing it, such as the absence due to illness of the molding room supervisor, Serrano,4 the lack of adequate maintenance which resulted in rundown equipment, and the loss of experienced operators. Then, after explaining how he had obtained addi- tional operators for each shift and additional mechanics for the department in an effort to solve these problems, Pillot testified that he was informed in a memorandum from Alvarez that it was the third shift which was producing the greater part of the scrap and that he was reorganizing the molding room to give more attention to that shift. Pillot, of course, was referring to Alvarez' memorandum an- nouncing the reorganization of the molding room which was purportedly prepared on September 30, the day before Martinez passed out the leaflets at- tacking Alvarez. It is apparent from Pillot's testimony as a whole that he had no first-hand knowledge of the conditions causing the problems in the molding room. The Respondent then called Quality Control Manager Alvarez as a witness. Alvarez was relative- ly new in the Respondent's employ and it is ap- parent from his testimony that the problems of the molding room, which was only one of a number of departments supervised by him, were new to him. Victor Rivera, a leader in the molding room, testified that Alvarez "hardly ever comes to the molding room." I have mentioned in connection with the Respondent's explanations of Martinez' transfer Alvarez' testimony that after Pillot spoke to him in September about the poor quality parts coming from the molding room, he had an analysis made by Martinez which showed that approximate- ly 20 to 25 percent of the parts made were bad, 'and that he concluded that the third shift was mainly responsible.5 Alvarez further testified that having ' As found above Serrano returned to work about 2 weeks before Mar- tineL' transfer s The Respondent offered the analysis made by Martinez, Resp Exh 1, to document its claim that the third shift was largely responsible for the poor quality production in the molding room However, considering the in- formation on the face of the document in the light of the testimony of Mar- tinez who prepared it, I am convinced that it does not show simply the production of the third shift but rather was an analysis of all the parts available for inspection at the time the inspection was made, regardless of the shift on which they were made This appears from the fact that the ex- hibit in part reflects the condition of plastic pieces after they have left the molding room and have been run through the wheelabrator At such a stage, according to Martinez , the production of all three shifts have been WIRING DEVICES, INC. 843 reached this conclusion, he gave consideration to the factors which possibly could cause the third shift to be the worst of all. He concluded that "the most critical shift had no quality control inspector." The logical solution to this problem, according to Alvarez, was to rearrange the shifts of the quality control auditors so as to place the Respondent's most experience auditor, Martinez, on duty during the third shift. During the first shift, Alvarez ex- plained, the Respondent had managerial support to take over the duties of the quality control auditor. Consequently, it was decided to place Martinez on a 10 p.m. to 7 a.m. shift and to have Maldonado, the other quality control auditor, take a 1 p.m. to 10 p.m. shift. Alvarez' testimony to the effect that the "most critical shift had no quality control in- spector" is open to question in view of the un- disputed fact that Jorge Maldonado, the second- shift quality control operator, was on duty for the first 3-1/2 hours of the third shift in the molding room. In view of the infrequency of Alvarez' visits to the molding room, his testimony concerning managerial support appears overstated, for Genova Serrano was the only supervisor in a position to give full-time supervision and after the reorganiza- tion he was having to act in a dual capacity, both as supervisor and as quality control auditor. The Respondent failed to call Supervisor Serrano as a witness . Serrano was the person having the most intimate first-hand knowledge of the problems of the molding room and the means of solving them. As far as the record shows, Serrano was not even consulted by Alvarez before he decided that the transfer of Martinez to the third shift was the solution to the problems of the molding room. No records were offered by the Respondent to substantiate the conclusionary testimony of its wit- nesses that the problem lay primarily in the third shift. I have carefully considered the records produced by the Respondent at my request to aid me in evaluating Respondent's Exhibit 1, but find nothing in them indicating that there were definite- ly more problems on the third shift than on the other two shifts. If anything, they indicate that problems cropped up helter-skelter, without regard to sh ift.6 mingled Another indication that Resp Exh I did not reflect the output of the third shift alone is the fact that it reports in several instances that two kinds of parts were mixed together When the parts leave the molding room they are not mixed Under all the circumstances I cannot accept at face value the designation "Audit of Parts Produced in 3rd shift " which was placed on the top of both sheets by Alvarez after the report was turned over to him by Martinez " I have also scrutinized the daily reports of Jorge Maldonado , the quality control auditor on the 4 30 p in to 1 30 a in shift, covering most of the month of September in an effort to determine if there was a discernible pat- tern of greater difficulty on the first 3-1/2 hours of the third shift than on the last 5-1/2 hours of the second shift However, I found no such pattern 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martinez testified that he did not observe any change in September in the way the three shifts operated in September from the • way they had operated in the past . As found above , however, Martinez did admit to expressing the opinion to Al- varez that the third shift was probably responsible for producing a higher percentage of scrap than the other two shifts. But, as I understand Martinez' testimony , this was nothing new. Jorge Maldonado , the other quality control audi- tor, and Victor Rivera , a leader of one of the shifts in the molding room , both testified they had not ob- served any unusual problems cropping up in the molding room in September which they had not ex- perienced before. In resolving the conflicts in the testimony con- cerning the seriousness of the problem of the third shift in the molding room in September, several points stand out. The factors mentioned by Pillot as being responsible for the problems in the molding room , the rundown condition of the egipment and the loss of experienced operators , are conditions which are common to all three shifts. Since the shifts in the molding room rotate , the lack of ex- perienced operators would seem adversely to affect whatever shift the inexperienced operators were working on . The fact that the Respondent had recently installed additional machines, without promptly adding sufficient extra operators and mechanics , was another factor causing problems in the molding room , a problem which was common to all three shifts. Under all the cirsumstances I conclude that the Respondent 's witnesses exaggerated the seriousness of the Respondent 's difficulties on the third shift in the molding room in order to provide an excuse for its treatment of Martinez. b. The illegality of the Respondent 's conduct under Section 8(a)(3) and (1) of the Act As found above, Martinez was the known leader in the movement to organize the Respondent's em- ployees in September 1969. The Respondent first sought to induce Martinez to abandon his union ac- tivities by using the "carrot" approach , offering to try to obtain for him an increase in wages and more overtime . When this approach failed , the Respon- dent applied the stick , in the form of a restriction on his previous freedom of movement about the plant which severely curtailed his opportunities to contact the assembly line workers during his free time . At the same time the Respondent openly ex- pressed its opposition to Martinez ' organizing ac- tivities. Not long thereafter , about 3 weeks before an election was scheduled to be held at the plant and the same day that Martinez had passed out leaflets in front of the plant in which the Union Or- ganizer Juan Maldonado had made extremely criti- cal comments about Quality Control Manager Al- varez because of his asserted prior antiunion record, Alvarez had Martinez transferred to the third shift without any advance notice . The transfer was effected but a few hours after Alvarez had con- fronted Martinez with the leaflet and berated him for his part in distributing it. While the Respondent urges that the problems on the third shift had reached "alarming" proportions in September , as found above , the Respondent has overemphasized the third -shift aspect of these problems. Many of the problems confronting the Respondent in the molding room at this time were common to all three shifts. For 4 months or so the Respondent had been having serious problems on all the shifts in the molding room due to the absence of Supervisor Serrano and the various other factors mentioned above , but the Respondent had not found it necessary to transfer Martinez. Yet after Serrano returned to work and could make his contribution to solving the problems of the molding room , the transfer of Martinez was assertedly found to be the most practical solution to these problems. The new element in the situation in September, of course , was the union organizing campaign which was to culminate in an election in a little over 3 weeks, with Martinez playing the leading role in the campaign . In my opinion the timing of Martinez' transfer and the precipitate manner in which it was put into effect suggest that antiunion consideration played a part. The arrangement for additional quality control auditor's services on the third shift does not appear to furnish an effective solution to the problems of the molding room. At the time of the transfer the Respondent already had a quality control auditor on the third shift for the first 3- 1 /2 hours thereof. By rearranging the shifts and placing Martinez on duty from 10 p.m. until 7 a .m., with a lunch period from 2 to 3 a.m., the Respondent merely added the services of a quality control auditor for an addi- tional 3-1/2 hours. Both Pillot and Alvarez stressed the absence of supervision on the third shift as an important factor contributing to its poor record. But instead of assigning a supervisor to the third shift, or at least a mechanic who could repair the machines which were turning out defective products, the Respondent merely added a few addi- tional hours ' coverage of the third shift by a quality control auditor, who could do no more when he ob- served a machine turning out defective products than stop the machine . While the Respondent did ultimately secure the services of additional mechanics , none was assigned to the third shift. The fact that the transfer of a quality control opera- GENERAL ELECTRIC WIRING DEVICES, INC. tor to the third shift was somewhat less than a logi- cal solution to the problems in the molding room casts doubt on the sincerity of the Respondent's ex- planation of the transfer of Martinez. Another circumstance to be taken into con- sideration in determining the Respondent's true motive in transferring Martinez is the fact that it was accomplished by a written memorandum which was apparently handed to Martinez without discus- sion. One would expect that a supervisor who was purportedly transferring a valued employee to a distasteful assignment in order to help the employer solve a serious production problem would take the time personally to discuss the problem with the em- ployee and would mention offsetting factors which might render the assignment less distasteful. While the Respondent now apparently contends that it was intended from the start that quality control au- ditors would be rotated on a 90-day basis, Alvarez failed to mention that the shifts would be rotated. Nor did Alvarez mention the 10-percent third-shift differential which might have eased the pain of the transfer. In fact Alvarez failed to give Martinez the, 10-percent third-shift differential to which he was apparently entitled under the Respondent's employ- ment policies. These circumstances cast further doubt on the Respondent's claim that this was the transfer of a needed and valued employee, one whose experience could best help the Respondent solve its third-shift production problem. Rather it appears more like a transfer which was hoped to be so unacceptable to Martinez that it would cause him to quit. Under all the circumstances of the case, I con- clude that the Respondent's explanation for Mar- tinez' transfer was but a pretext, and that it trans- ferred Martinez to the late night shift in the hope that the assignment would be so unacceptable to him that he would quit, thereby removing from its employ the sparkplug of the union movement, and failing this, the transfer would substantially reduce Martinez' opportunity to contact the Respondent's day-shift assembly line employees who were the great bulk of the Respondent's workers. The two incidents which occurred after the Respondent's transfer of Martinez-the first one involving the guard's ordering production employees away from Martinez, although it was a break period for all of the employees, and the second, involving Alvarez ordering Martinez out of the plant during the day- tend to confirm the view that the Respondent's pur- pose was to keep Martinez isolated from the rest of the employees. ' In reaching this conclusion I have not overlooked Alvarez' memoran- dum to Pillot in which Alvarez announced his decision to reorganize the shifts of the quality control operators, placing Martinez on the third shift While this memorandum bears the date of September 30, the day before 845 Upon all of the facts I conclude that the Respon- dent's transfer of Martinez to the third shift on Oc- tober 1 and also its earlier action in restricting him to the molding room, except by special order or permission, constituted acts of discrimination against him in violation of Section 8(a)(3) and (1) of the Act.' CONCLUSIONS OF LAW 1. By transferring Pedro Martinez to the night shift on October 1, 1969, and by restricting Pedro Martinez to the molding room, except by special order or permission, the Respondent has discouraged membership in International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, by discrimination in regard to hire, tenure, terms and conditions of employment and has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, my Recommended Order will direct that the Respondent cease and desist therefrom and take certain affirmative action to ef- fectuate the policies of the Act. I have found that the Respondent unlawfully dis- criminated against Pedro Martinez by transferring him to the late night shift on October 1, 1969. To remedy this unlawful conduct my Recommended Order will provide that the Respondent reinstate Martinez to his former position as quality control auditor on the 7:30 a.m. to 4:30 p.m. shift, and that it make him whole for his losses, if any, resulting from the Respondent's failure to pay Martinez premium pay for night-shift work, if any was due him under the Respondent's employment policies in effect at the time of Martinez' transfer, during the period commencing with Martinez' transfer to the night shift and continuing until the Respondent has restored him or offers to restore him to the day shift. Interest at the rate of 6 percent per annum shall be added to any sums due Martinez in reim- bursement for his failure to receive the night-shift premium or differential. Isis Plumbing & Heating Co., 138 NLRB 716. Martinez' distribution of the leaflets attacking Alvarez, I am convinced under all the circumstances of the case that this memorandum was not prepared until after Martinez ' distribution of the leaflets 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings and conclusions and pursuant to Section 10(c) of the Act there is hereby issued the following: RECOMMENDED ORDER8 The Respondent, General Electric Wiring Devices, Inc., Juana Diaz, Puerto Rico, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by transferring employees to less desirable shifts, by restricting employees' freedom of movement about the plant, or by in any other manner discriminating against employees in regard to their hire or tenure of employment or any terms or conditions of em- ployment. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to restore Pedro Martinez to his former position as quality control auditor on the 7:30 a.m. to 4:30 p.m. shift in the molding room, and make him whole for his losses, if any, resulting from the Respondent's failure to pay him its custo- mary night-shift differential, in the manner set forth in the portion of the Trial Examiner's Decision enti- tled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its plant at Juana Diaz, Puerto Rico, copies of the attached notice marked "Appendix, together with a Spanish translation thereof."9 Co- pies of said notice, in English and Spanish, on forms provided by the Regional Director for Region 24, after being duly signed by Respondent's duly authorized representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional -Director for Region 24, in writing, within 20 days from the receipt of this Decision, what steps. have been taken to comply herewith. 10 " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes " In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals En- forcing an Order of the National Labor Relations Board " '" In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT transfer employees to un- desirable shifts, restrict them to their depart- ments, or otherwise discriminate against any of our employees in regard to their hire, tenure, or any terms or conditions of employment, because of their union activities. WE WILL NOT in any like or related manner interfere with our employees' right to join or be represented by a labor union. WE WILL restore Pedro Martinez to his former position as quality control auditor on the 7:30 a.m. to 4:30 p.m. shift and reimburse him for his financial loss resulting from our failure, if any, to pay for third-shift work. GENERAL ELECTRIC WIRING DEVICES, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 7th Floor, Pan Am Building, 255 Ponce de Leon Avenue, Hato Rey, Puerto Rico 00919, Telephone 809-765-0404.